John B. Bellinger III ’86 was legal adviser to the National Security Council when the terrorists struck on 9/11; he later served as head of the legal department at the U.S. State Department. Bellinger has spoken in the past about his unsuccessful efforts within the Bush administration for application of minimum Geneva Convention standards for suspected terrorist detainees, a position that was vindicated by a 2006 U.S. Supreme Court ruling, Hamdan v. Rumsfeld. Today Bellinger is head of the Global Law and Public Policy Practice at Arnold & Porter in Washington, D.C.
Harvard Law Today: At this anniversary, what emotions or impressions come up for you?
John B. Bellinger III ’86: My views have ended up changing in the last week because, of course, with the fall of the government in Afghanistan and the Taliban back in power, we have come full circle to the time that I was in the White House. I was in the White House as [National Security Council] legal adviser in the spring, summer, and fall of 2001, both as we watched the al Qaeda training camps protected by the Taliban on the day of 9/11, and then the invasion of Afghanistan and the routing of the Taliban. To 20 years later have the Taliban back in power again is just head-spinning. It’s hard to imagine that it’s been 20 years because it does seem like yesterday that I was in the Situation Room, and we were beginning our staff meeting with then-National Security Adviser Condoleezza Rice when the planes hit the World Trade Center. For me, the fall of the government in Afghanistan and the return to power of the Taliban evokes even more acute memories of that time; otherwise, it might have been lost a little bit more to history. But now, watching the Taliban back in power again and being reminded of that period of time, I now am remembering all of the events pre-, during, and after 9/11.
HLT: What particular memory arises?
Bellinger: I really mostly worry about the future. Having watched the Taliban in the spring and summer of 2001 and realizing really how evil they can be, particularly towards women, is concerning, both for the people of Afghanistan, but also will they allow terrorism to take root again in Afghanistan? That was what we saw going on in the spring and summer of 2001. We saw the al Qaeda training camps that were being protected by the Taliban, so we saw not only the Taliban doing bad things to their own people but protecting terrorists. So my worry now is, what does the future hold, not only for the people of Afghanistan, particularly women, but of course for the United States? Will we have to intervene again in Afghanistan either for humanitarian reasons or for security reasons? As we do this interview, it’s hard to know what the future will hold. But if past is prologue, having the Taliban back in power again is not going to be good for the Afghan people or for the United States.
HLT: If you were back in the White House as an adviser today, what would you recommend?
Bellinger: It’s hard to know over the longer term; the shorter term, of course, we’re all focused on trying to protect the Afghan nationals that worked with the United States or who are otherwise at risk. I’ve been actually spending quite a bit of time this week helping evacuate Afghan nationals. One of my main pro bono clients is the American University of Afghanistan, which is largely funded by the U.S. government and which educates predominantly young Afghan women. It has been an incredible success story, particularly for Afghan women, and in creating a well-educated, technical class. But they were attacked five years ago by the Taliban in a famous terrorist attack that killed a lot of students and kidnapped two of their professors. So right now, I’ve been focused very much, as is the U.S. government … in just trying to triage in protecting the people who have worked with the United States and getting them to safety, getting them to the United States.
Then we will have to figure out how we deal with the new reality of the Taliban in control of the government again, and I don’t have answers for that right now. Having spent several periods of time inside the White House after 9/11 and then during the Afghan and Iraq wars, I know it’s all hands on deck, not only inside the White House but amongst the government agencies. I think they are now focused on trying to prevent this disaster from becoming an unmitigated disaster.
HLT: Are you more worried about the U.S. now than you were 20 years ago in terms of national security?
Bellinger: I am. I’m worried about the U.S. position in the world and our loss of influence. Part of that is that we’ve lost our national unity at home. We are so divided and we’re particularly divided on something that there used to be mostly a consensus on, which was America’s place in the world, America’s global leadership role in the world. Even if Americans have long been divided about intervention and isolationism, there was always a belief that the United States had an important role in global leadership. I am concerned that Republicans — and obviously, I served in a Republican administration — that Republicans have now become so inward looking that they’re no longer really supporting a global leadership role, with the mantra, at least of the Trump administration, having been “America First.” So I am concerned about that lack of unity at home and our loss of leadership in the world. We’re being challenged by China, challenged by Russia. Our adversaries are enjoying immensely the humiliation in Afghanistan, and of course, our allies in Europe and in the Middle East region are looking at this and wondering whether the United States is really going to remain a reliable ally. Again, that goes back to the issue of national unity. The Biden administration might or might not be behind them but what about the next Republican administration? So I am concerned what the future will hold in terms of U.S. leadership in the world.
I think that the other thing to do is to really reflect on the changes in law. I was both the NSC legal adviser and then the State Department legal adviser, and I think it is worth reflecting on the implications of 9/11 for law. It did lead to significant changes in some ways but not in other ways. There was, of course, enormous changes and gap-filling in U.S. domestic laws. We realized, for example, that U.S. domestic laws on terrorism often did not apply outside the United States, so there was a lot of gap-filling. I spent the entire second term in the Bush administration focusing on trying to build an international legal consensus on how to deal with terrorism. The Bush administration made, I think, a number of mistakes in the first term, decisions that I disagreed with, that we then tried to fix in the second term. But there is still, 20 years later, not an international legal consensus on how countries deal with terrorist threats that emanate from outside our countries. I spent a lot of time in the second term of the Bush administration working with other countries trying to develop that international legal framework on how to deal with terrorism. If we had further attacks today, I think the United States would continue doing what it is done under four presidencies, President Bush, President Obama, President Trump, and President Biden. But there is not agreement amongst other countries about when it is appropriate to use force against terrorists, whether drone strikes in other countries are appropriate, whether it is appropriate to detain terror suspects under the laws of war as opposed to as criminal suspects.
So, when I look back at 20 years in the development of law on how to deal with the 9/11 attacks, I see significant gap-filling in our laws in the United States. But as the former lead international lawyer for the United States, I remain concerned that the international community has not done enough to try to develop consensus on that international legal framework. When I talked to people 15 years ago and identified some of these gaps in the law, some Europeans would say, ‘Well, we see your point, we really need to renegotiate the Geneva Conventions.’ That’s not really possible to do, you can’t really get 194 countries to agree, but we do need to get some countries to agree on what the international law rules are on detention or on use of force. And to this day, there remains a lack of a legal consensus on how to deal with major terrorist groups. So I look back on 9/11 with some frustration that we have not made as much progress. And so if we have a future conflict between the United States and an international terrorist group that we will not have done enough to develop the law for that future conflict. That’s something that I will say to the lawyers in the Biden administration, many of whom I know, which is to say, look, we may not be in a major conflict right now with international terrorist groups. Let’s use this time, though, to continue to develop the international legal framework so that we are ready.
HLT: You’re talked often at HLS about your career and experiences. What do you tell students?
Bellinger: I’ve pretty frequently had the chance over the last 15 years or so, both while I was in office and since leaving, to come up quite often [to HLS] to speak either in individual classes or to talk about careers in government and international law. The last time I was up … I was talking in a class [about executive power] when all of the students suddenly started laughing. And I wondered, oh my goodness, what have I just said, have I spilled on my tie? I said, what, what? They all showed me their phones and it turned out the president had just tweeted at me because it was a few days after I was representing Bill Taylor in the [Trump] impeachment proceedings, and President Trump tweeted at me personally saying, ‘Never Trumper Republican lawyer John Bellinger representing Never Trumper Ambassador Bill Taylor, they are all humans scum!’ That is actually an out-of-body experience to be to be standing there up at Harvard and suddenly you have the president of the United States tweet at you.